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May 22, 1989


The opinion of the court was delivered by: GASCH


 On December 12, 1988, this Court granted summary judgment and permanent injunctive relief for plaintiffs in this action. The Court set out a schedule for defendants to adhere to in implementing the Stewart B. McKinney Homeless Assistance Act. See 42 U.S.C. § 11411. Plaintiffs are before the Court on a motion for further order enforcing the permanent injunction. They contend that the Department of Health and Human Services ("HHS") is improperly refusing to consider applications from homeless providers for properties that have been declared suitable by the Department of Housing and Urban Development ("HUD"). Defendants contend that the statute does not require HHS to consider applications for suitable properties until the agency controlling the property declares the property excess or otherwise acts under Section 501(c) of the McKinney Act.

 Plaintiffs seek an order (i) compelling HHS to accept and process applications for all properties that have been designated by HUD as suitable, (ii) barring the Army from transferring the Naval Reserve Center in Huntsville, Alabama, until the application from the Food Bank of North Alabama is considered by HHS, and (iii) requiring landholding agencies to publish their reasons for refusing to declare properties excess or make them available for interim use.


 Section 501 of the McKinney Act, codified at 42 U.S.C. § 11411, sets out the process by which vacant federal properties are to be made available to assist the homeless. Subsection (a) requires HUD to collect information about properties described as unutilized or underutilized by the landholding agencies. HUD must identify the suitable properties within two months after collecting the information, and notify the landholding agency. 42 U.S.C. § 11411(a). The landholding agency has thirty days to either (i) declare the suitable property "excess" to its needs, (ii) "make the property available on an interim basis" to homeless providers, or (iii) explain to HUD and the Administrator of General Services ("GSA") why the property cannot be declared excess or made available on an interim basis. Id. § 11411(b).

 HHS and GSA are to "take such action as may be necessary to make buildings and property identified under subsection (a) available" to homeless providers. Id. § 11411(c). The Court has interpreted this to mean that after properties are declared excess by the landholding agencies they may, but need not be, offered to other federal agencies before being made available to assist the homeless. National Coalition for the Homeless v. Veterans' Administration, No. 88-2503, Mem. Op. at 25 (D.D.C. Dec. 15, 1988). Finally, the statute provides that HHS can make properties available by way of leases lasting at least one year and that landholding agencies can make properties available by interim permit or lease. Id. § 11411(d).

 The parties agree that applications are properly submitted only after a property has been designated as suitable by HUD. Plaintiffs contend that HHS is required to accept and process applications for all properties declared suitable, regardless whether they have been declared excess by the landholding agency. Defendants contend that HHS must accept applications only after the property is declared "excess" by the landholding agency; prior to that, the landholding agency should receive and process the applications.


 The question of which agency should process applications for suitable property not yet declared excess is significant; approximately 90 percent of the properties identified as suitable by HUD have not been declared excess or otherwise acted upon pursuant to Section 501(b) by the landholding agencies. Since December, HUD has determined that approximately 1,515 under-utilized properties are suitable. Of these, approximately 292 had been declared excess prior to HUD's suitability determination. Almost all of the remaining properties are still awaiting the excess determination by the landholding agency. *fn1" Thus, homeless providers can apply to HHS for only about 300 of the 1,515 properties identified as suitable by HUD.

 When lists of properties determined to be suitable are published in the Federal Register, they are accompanied by an explanation of where applications should be submitted. The public is instructed that after the landholding agency makes its "excess" determination, GSA will publish a list of the properties declared excess. Homeless providers will then have 30 days to submit an application or expression of interest in the property to HHS. In addition, they may apply to the respective landholding agencies for use of property on an interim basis rather than waiting for the "excess" determination. The name and address of each agency's contact person is published along with the list of properties.

 Plaintiffs contend that the landholding agencies do not have adequate procedures for processing or even accepting applications. They have submitted declarations from three persons who unsuccessfully sought to acquire suitable property from a landholding agency. In the most instructive example, Richard Hiatt, Executive Director of the Food Bank of North Alabama, attempted to lease the Naval Reserve Building in Huntsville, Alabama to store food. The Navy has leased the building from the City of Huntsville since 1948. The lease, by its present terms, provides that the property may be used "for any governmental purpose." Kane Declaration, Exhibit C. It also provides "The Government shall not assign this lease in any event, and shall not sublet the demised premises except to a desirable tenant, and will not permit the use of said premises by anyone other than the Government, such sublessee, and the agents and servants of the Government, or of such sublessee." Id., Exhibit A, para. 3.

 In November, 1987, Hiatt wrote the local commanding officer with his request to lease the property; Mr. Steven Kleiman, Director of the Department of Defense's ("DOD") Homeless Assistance Program received a copy of the letter. In February, 1988 Mr. Kleiman wrote Mr. Hiatt, informing him that DOD's authority to lease the building was governed by 10 U.S.C. § 2546, which required the participation of the City of Huntsville in any lease agreement. Mr. Hiatt was unable to secure the participation of the City of Huntsville.

 On August 23, 1988, DOD declared the property excess to its needs. But on November 22, 1988 the GSA refused to accept the property and returned it to control of DOD on the ground that the terms of the lease with Huntsville precluded an assignment to GSA. Kane Declaration, Exhibit I. Mr. Hiatt wrote Mr. Kleiman in December, 1988 asking that the property be leased under the McKinney Act. Mr. Kleiman responded promptly, noting that the request had been forwarded to the appropriate Navy official and that "if . . . the building is unutilized, your organization may be eligible to claim the property for use." Id., Exhibit 6. A HHS official, who was sent a copy of ...

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